Judicial Takings and Scalia’s Shifting Sands

Last term, the Supreme Court decided what could end up being an important precedent for protecting property rights – even as the Court ruled unanimously against the property owners in that particular case!  How is this possible?  Read the new article by Cato legal associate Trevor Burrus and me, “Judicial Takings and Scalia’s Shifting Sands.”

Here’s the background:  Seeking to restore beaches damaged by hurricanes, the Florida Department of Environmental Protection began dredging sand from the Gulf of Mexico ocean floor and transporting it to Florida’s gulf coast. The expanded area of the beach became state property, depriving beachfront landowners of their littoral rights. In reviewing the landowners’ lawsuit against the state, the Florida Supreme Court (SCOFLA, if you remember your Bush v. Gore trivia) departed from long-established state law principles protecting littoral property rights and held that littoral rights are an ancillary concept subsumed by the right of access. In so doing, the court effectively discarded 100 years of property law and rewrote the definition of property.

The U.S. Supreme Court had never formally addressed whether state court rulings eliminating formerly established property rights can effect a taking, or violate an owner’s due process rights, under the Fifth and Fourteenth Amendments to the U.S. Constitution. Cato joined the National Federation of Independent Business Small Business Legal Center and the Pacific Legal Foundation on a brief supporting the landowners.

In June, Court finally decided Stop the Beach Renourishment v. Florida Department of Environmental Protection.  The decision waded through a jumbled mass of arcane waterfront law to reach a very simple and unanimous holding: the Florida Supreme Court did not subvert an existing property right to such an extent that its decision constituted a “judicial taking.”  The state won.  The property owners lost.  SCOFLA was vindicated.

Still, while all eight justices ultimately ruled for the state – Justice Stevens recused himself because his Florida property is subject to the renourishment program – six accepted the idea that judges can violate the Constitution by reinterpreting pre-existing property rights (albeit under two different theories), and the other two declined to reach the question.  Although the Stop the Beach Court found that SCOFLA had not departed from sufficiently established state property law to constitute a taking, the idea of a judicial taking – whether through the Fifth Amendment’s Takings Clause or the Fourteenth Amendment’s Due Process Clause – is very much alive.

And that’s where our article in the Vermont Law Review picks up.  In this article, Trevor and I examine the background of the judicial takings doctrine, react to the Court’s decision here in light of Cato’s amicus brief, and contrast Justice Scalia’s views of Substantive Due Process as expressed in Stop the Beach with that in another high-profile case whose plurality opinion he joined, McDonald v. City of Chicago, to argue that the judicial takings doctrine is necessary to a robust constitutional protection of property rights.